Officers of an organisation will have a new and ongoing obligation to exercise due dilligence to ensure the organisation complies with its own duties or obligations under the Act. This will require careful and regular reporting and risk-assessment for those officers. The duty is a personal one which cannot be delegated, and any penalties cannot be covered by the business.
Interestingly, a duty is not owed to people who are in a workplace for an illegal purpose e.g. trespassers. It remains to be seen how this will be interpreted by the courts – we do not recommend pulling down your security fences just yet.
Increase in penalties
The fines for breaches of duties are increased significantly. Fines for the more serious offences can be up to $3,000,000 for the organisation. Officers of the organisation can receive fines of up to $600,000, five years’ imprisonment or both.
Consultation and worker engagement
The new Act requires engagement and participation with “workers” and other affected parties. For certain businesses this could mean training and dealing with health and safety representatives. These representatives have certain notification powers in relation to hazards and risks, and are entitled to a number of days off every year to attend training.
One of the more controversial changes to the final version of the Act is the exemption from having a health and safety representative for small businesses (under 20 employees) which are not in a high-risk industry. It is important to note that this change only removes the requirement to have/train a health and safety representative. All businesses will still owe all the other strict duties (and be subject to the same tough penalties) regardless of their size/risk.
The Government proposed some objective criteria to decide what is “high risk” based on that industry’s injury and death rates. With a few exceptions, if an industry overall is able to lower its rate of injury and death, then smaller businesses in that industry may not have to incur the significant cost of health and safety representatives. There is likely to be some amendment to the high-risk category before the Act comes into force in 2016.
To help you understand your obligations under the Act, we have commented below on a number of the key definitions.
PCBU: The duties traditionally owed by employers will instead be owed by a Person Conducting a Business or Undertaking (PCBU). While this might seem overly wordy, the PCBU concept covers a broad range of bodies including employers, businesses, contractors and self-employed people. The term is wide enough to prevent any party avoiding their duties under the new regime. Importantly, the PCBU concept includes some (but not all) volunteer organisations so it is important to take advice to see if you are caught.
Worker: The Act replaces the definition “employee” with the broader “worker” which is defined as anyone undertaking work for a PCBU. This goes beyond just employees and will include contractors, subcontractors and even some volunteers.
Hazard / Risk: Interestingly, the terms “Hazard” and “Risk” are deliberately not defined in the Act. The only guidance as to what constitutes a Hazard is that it can include a person’s behaviour. The reasoning behind this is to force businesses to think about the common meaning of these terms, rather than looking for loopholes in a statutory definition.
Officers: There was some concern about who would attract the new officers’ duties. The Act clarifies that the duties are owed by people in senior governance roles e.g. directors, partners or CEOs. To be caught by the duties, these people must be able to exercise significant influence over the management of the business, and not merely make recommendations.
Workplace: A ”Workplace” is now defined as a place where work is being carried out (or is customarily carried out). This distinction was added in response to submissions that not all areas are workplaces all of the time. A good example is where your worksite is mobile e.g. an electrician. Worksites will be workplaces when actual work is being carried out there, but once you leave the site you no longer owe (health and safety) duties in respect of that place.
What are the next steps?
Jackson Russell is encouraging all its business clients to review their health and safety systems to ensure they comply with the Act before April 2016. We can assist with a variety of different services which we tailor depending on the client’s size, industry and any health and safety systems they already have in place. We offer cost effective solutions including:
- Providing a full suite of template documents to record and build a health and safety programme;
- Audits of existing policies, documents and procedures;
- Providing advice about compliance with the new requirements;
- Assisting you to develop new policies and procedures (resulting in both compliance and a safer workplace);
- Briefing sessions for senior management “Officers” on their obligations under the Act; and
- Assistance with Worksafe investigations / prosecutions in the unfortunate event that someone is injured at your workplace.
If you have any specific questions about how you can prepare your business for the incoming changes, please contact our Employment or Business Law teams for specialist advice.
The information contained in this publication is of a general nature and is not intended as legal advice. It is important that you seek legal advice that is specific to your circumstances.
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